IN THE SUPREME COURT OF FLORIDA CASE NO. SC14-2428

IN THE SUPREME COURT OF FLORIDA

CASE NO. SC14-2428

JOHNNY SHANE KORMONDY,

Appellant,

STATE OF FLORIDA,

Appellee.

ON APPEAL FROM THE CIRCUIT COURT

OF THE FIRST JUDICIAL CIRCUIT,

IN AND FOR ESCAMBIA COUNTY, STATE OF FLORIDA

INITIAL BRIEF OF APPELLANT

MICHAEL P. REITER

Florida Bar No. 0320234

4 Mulligan Court

Ocala, FL 34472

Telephone (813) 391-5025

Facsimile (352) 292-3698

E-Mail: [email protected]

Counsel for Mr. Kormondy

FILED

JOHN A. TOMASINO

CLERK, SUPREME COURT

2014 Dec 22 1:42 pm

REQUEST FOR ORAL ARGUMENT

Kormondy has been sentenced to death. The resolution of the

issues involved in this action will therefore determine whether

he lives or dies. This Court has not hesitated to allow oral

argument in other capital cases in a similar procedural posture.

Lightbourne v. State, 742 So. 2d 238 (Fla. 1999); Mills v. Moore,

786 So. 2d 532 (Fla. 2001); Swafford v. State, 828 So. 2d 966

(Fla. 2002); Roberts v. State, 840 So. 2d 962 (Fla. 2002); Wright

v. State, 857 So. 2d 861 (Fla. 2003). A full opportunity to air

the issues through oral argument would be more than appropriate

in this case, given the seriousness of the claims involved and

the stakes at issue. Kormondy, through counsel, accordingly

urges that the Court permit oral argument.

TABLE OF CONTENTS

Page

REQUEST FOR ORAL ARGUMENT ..................................... i

TABLE OF CONTENTS ............................................ ii

TABLE OF AUTHORITIES ........................................ iii

PRELIMINARY STATEMENT ......................................... 1

INTRODUCTION................................................... 2

STATEMENT OF THE CASE ......................................... 3

STATEMENT OF THE FACTS ........................................ 5

SUMMARY OF THE ARGUMENT ...................................... 12

STANDARD OF REVIEW ........................................... 13

ARGUMENT I

NEWLY DISCOVERED EVIDENCE DEMONSTRATES THAT KORMONDY’S

DEATH SENTENCE IS CONSTITUTIONALLY UNRELIABLE IN

VIOLATION OF THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES CONSTITUTION............. 14

ARGUMENT II

KORMONDY IS ENTITLED TO EQUITABLE RELIEF AND

CONSIDERATION OF THE MERITS REGARDING HIS CLAIM THAT

HE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL AND/OR

THE STATE VIOLATED BRADY V. MARYLAND AND

GIGLIO V. UNITED STATES.................................. 29

CONCLUSION.................................................... 42

CERTIFICATE OF SERVICE........................................ 43

CERTIFICATE OF FONT........................................... 43

TABLE OF AUTHORITIES

Cases Page

Arbelaez v. State

775 So. 2d 909 (Fla. 2000)............................... 19

Brady v. Maryland

373 U.S. 83 (1963)....................................... 33

Card v. State

652 So. 2d 344 (Fla. 1995)............................... 19

Craig v. State

510 So. 2d 269 (Fla. 1987)............................... 17

Clark v. State

35 So. 3d 880 (Fla. 2010)................................ 16

Gaskin v. State

737 So. 2d 509 (Fla. 1999)........................... 13, 19

Giglio v. United States

405 U.S. 150 (1972)...................................... 33

Hallman v. State

371 So.2d 482 (Fla. 1979)................................ 14

Hazen v. State

700 So. 2d 1207 (Fla. 1997)....................... 3, 16, 28

Holland v. Florida

130 S.Ct. 2549 (2010).................................... 42

Holland v. State

503 So.2d 1354 (Fla. 1987)............................... 39

Johnson v. Singletary

647 So. 2d 106 (Fla. 1994)............................... 19

Johnston v. State

27 So. 3d 11 (Fla. 2010)................................. 22

Jones v. State

591 So. 2d 911 (Fla. 1991)........................... 14, 20

Kormondy v. Florida

540 U.S. 950 (2003)....................................... 4

Kormondy v. Secretary

688 F.3d 1244 (2012)...................................... 4

iii

Kormondy v. State

703 So. 2d 454 (Fla. 1997)................................ 3

Kormondy v. State

845 So. 2d 41 (Fla. 2003)...................... 4, 6, 17, 34

Kormondy v. State

983 So. 2d 418 (Fla. 2007)........................ 4, 10, 35

Kormondy v. Tucker

133 S.Ct. 764 (2012)...................................... 4

Kormondy v. Tucker

No. 3:08-cv-00316-RH (N.D. Fla. 2011)................ 28, 36

Lightbourne v. State

742 So. 2d 238 (Fla. 1999)....................... 13, 19, 29

Maharaj v. State

684 So. 2d 726 (Fla. 1996)............................... 20

Malloy v. State

382 So. 2d 1190 (Fla. 1979).............................. 18

Marek v. State

14 So. 3d 985 (Fla. 2009)........................ 20, 21, 25

Martinez v. Ryan

132 S.Ct. 1309 (2012)......................... 30, 37, 38 42

Melendez v. State

718 So. 2d 746 (Fla. 1998)............................... 19

Muehlman v. State

3 So. 3d 1149 (Fla. 2009)................................ 42

Napue v. Illinois

360 U.S. 264 (1959)...................................... 33

Patton v. State

784 So. 2d 380 (Fla. 2000)............................... 19

Peede v. State

748 So. 2d 253 (Fla. 1999)............................... 13

Roberts v. State

678 So. 2d 1232 (Fla. 1996).............................. 19

Scott v. Dugger

604 So. 2d 465 (Fla. 1992)........................... 14, 18

Scott v. State

657 So. 2d 1129 (Fla. 1995).............................. 19

Sireci v. State

773 So. 2d 34 (Fla. 2000)............................ 20, 21

State v. Akins

69 So. 3d 261 (Fla. 2011)................................ 39

State v. Mills

788 So. 2d 249 (Fla. 2001)........................... 18, 19

Strazulla v. Hendrick

177 So. 2d 1 (Fla. 1965)............................. 39, 41

Swafford v. State

679 So. 2d 736 (Fla. 1996)........................... 19, 29

Trevino v. Thaler

133 S.Ct. 1911 (2013)........................ 30, 36, 37, 38

PRELIMINARY STATEMENT

This proceeding involves the appeal of the circuit court’s

order summarily denying Kormondy’s successive Rule 3.851 motion.

The following symbols will be used to designate references to the

record in this appeal:

“R1.” - record on direct appeal;

“TT1.” - transcript of trial proceedings;

“R2.” - record on resentencing direct appeal;

“TT2.” - transcript of resentencing proceedings;

“SR.” - supplemental record on resentencing direct

appeal;

“PC-R.” - postconviction record on appeal;

“PC-T.” - transcript of postconviction evidentiary

hearing;

“PC-R2.” - record on appeal following the summary denial of

successive postconviction motion.

“HT.” -transcript of trial proceedings in the James

Hazen case.

INTRODUCTION

The recurring issue in this tragic case has revolved around

the identity of the shooter amongst three co-defendants, Johnny

Kormondy, Curtis Buffkin and James Hazen. Kormondy has always

maintained that it was Buffkin who the shot the victim, Gary

McAdams. Buffkin, on the other hand, testified at Hazen’s trial,

in exchange for a deal from the State, that Kormondy was the

shooter.

Hazen at the time of his trial denied being present

for the crime.

Buffkin was able to avoid the death penalty on the basis

that he wasn’t the shooter and that he testify truthfully at

Hazen’s trial. Hazen was able to avoid the death penalty based

on this Court’s finding that he was less culpable than Buffkin.

Kormondy, on the other hand, received the death penalty on the

basis that the evidence in existence at the time tended to

demonstrate that he was the shooter.

As it stands today, the notion that Kormondy was the shooter

is no longer reliable. Buffkin, Hazen and Kormondy have all

acknowledged that it was in fact Buffkin who shot Gary McAdams.

Buffkin was angry at Kormondy for talking about the crime and for

Buffkin initially went to trial and the State repeatedly

asserted that he was the leader of the group (SR. 373, 376, 393).

A plea agreement was reached while the jury was trying to reach a

verdict.

Hazen did, however, testify at his trial that Buffkin

confessed to the shooting (“Darrell comes around the car first

and I hear him. He stops by the front and he says well, if I

didn’t do it like that, I was going to have to shoot him

anyhow.”)(SR. 428).

causing the three defendants to be caught. Thus, in order to

avoid the death penalty, he chose Kormondy to take the fall.

While Buffkin testified to the contrary at Hazen’s trial, he

has consistently told numerous individuals over the past twenty

years that it was he who shot Gary McAdams. Buffkin does not

deny making these statements, nor does he dispute their veracity.

Kormondy did not shoot Gary McAdams, and as a result, his death

sentence must be vacated.

STATEMENT OF THE CASE

On July 27, 1993, a grand jury indicted Johnny Kormondy,

Curtis Buffkin and James Hazen with identical charges

of one count of first-degree murder, three counts of armed sexual

battery, one count of burglary of a dwelling with an assault and

intent to commit a theft, and one count of armed robbery.

Kormondy proceeded to trial on July 5, 1994 and was

found guilty on all charges. Following a penalty phase, the jury

recommended death by a vote of 8 to 4. On October 7, 1994, the

trial court sentenced Kormondy to death.

On direct appeal, this Court affirmed Kormondy’s

convictions, but reversed and remanded for a new sentencing

proceeding. Kormondy v. State, 703 So. 2d 454 (Fla. 1997). At

Buffkin, who was offered a plea bargain by the State in

return for assistance in the prosecution of Kormondy and Hazen,

received a life sentence. Buffkin’s plea bargain was provided on

the basis that he wasn’t the shooter (HT. 946-47, 1017). Hazen

was originally sentenced to death following his trial, but his

sentence was subsequently reduced to life imprisonment by this

Court. See Hazen v. State, 700 So. 2d 1207, 1214 (Fla. 1997).

the conclusion of the resentencing, the jury again recommended

death by a vote of 8 to 4, and the trial court sentenced Kormondy

to death on July 7, 1999.

On direct appeal, this Court affirmed Kormondy’s sentence.

Kormondy v. State, 845 So. 2d 41 (Fla. 2003). Certiorari was

denied by the United States Supreme Court on October 23, 2003.

Kormondy v. Florida, 540 U.S. 950 (2003).

On August 30, 2004, Kormondy filed a postconviction

motion in the state circuit court. After an evidentiary hearing,

the court denied relief on June 20, 2005. Following Kormondy’s

appeal, this Court affirmed the denial of relief on October 11,

2007. Kormondy v. State, 983 So. 2d 418 (Fla. 2007).

On July 24, 2008, Kormondy filed a federal habeas corpus

petition in the Northern District of Florida. The petition was

denied on September 29, 2011.

On July 31, 2012, subsequent to briefing and oral argument,

the Eleventh Circuit Court of Appeals issued an opinion affirming

the denial of Kormondy’s federal habeas petition. Kormondy v.

Secretary, 688 F.3d 1244 (2012). Certiorari was denied by the

United States Supreme Court on December 3, 2012. Kormondy v.

Tucker, 133 S.Ct. 764 (2012).

On November 24, 2014, the Governor of Florida signed a

warrant scheduling Kormondy’s execution. Kormondy filed a Rule

3.851 postconviction motion on December 4, 2014. Amendments to

the motion were filed on December 7 and December 9, 2014. The

circuit court denied relief on December 15, 2014. This appeal

follows.

STATEMENT OF THE FACTS

A. TRIAL

The facts of the crime as set out by this Court are as

follows:

The victim Gary McAdams was murdered, with a

single gunshot wound to the back of his head, in

the early morning of July 11, 1993. He and his

wife, Cecilia McAdams, had returned home from Mrs.

McAdams’ twenty-year high-school reunion. They

heard a knock at the door. When Mr. McAdams opened

the door, Curtis Buffkin was there holding a gun.

He forced himself into the house. He ordered the

couple to get on the kitchen floor and keep their

heads down. James Hazen and Johnny Kormondy then

entered the house. They both had socks on their

hands. The three intruders took personal valuables

from the couple. The blinds were closed and phone

cords disconnected.

At this point, one of the intruders took Mrs.

McAdams to a bedroom in the back. He forced her to

remove her dress. He then forced her to perform

oral sex on him. She was being held at gun point.

Another of the intruders then entered the

room. He was described as having sandy-colored

hair that hung down to the collarbone. This

intruder proceeded to rape Mrs. McAdams while the

first intruder again forced her to perform oral

sex on him.

She was taken back to the kitchen, naked, and

placed with her husband. Subsequently, one of the

intruders took Mrs. McAdams to the bedroom and

raped her. While he was raping her, a gunshot was

fired in the front of the house. Mrs. McAdams

heard someone yell for “Bubba” or “Buff” and the

man stopped raping her and ran from the bedroom.

Mrs. McAdams then left the bedroom and was going

towards the front of the house when she heard a

gunshot come from the bedroom. When she arrived at

the kitchen, she found her husband on the floor

with blood coming from the back of his head. The

medical examiner testified that Mr. McAdams’ death

was caused by a contact gunshot wound. This means

that the barrel of the gun was held to Mr.

McAdams’ head.

Kormondy was married to Valerie Kormondy.

They have one child. After the murder, Mrs.

Kormondy asked Kormondy to leave the family home.

He left and stayed with Willie Long. Kormondy told

Long about the murder and admitted that he had

shot Mr. McAdams. He explained, though, that the

gun had gone off accidentally. Long went to the

police because of the $50,000 reward for

information.

Kormondy v. State, 703 So.2d 454, 456-57

(Fla.1997)(footnote omitted).

We also noted the following factual dispute

between Kormondy’s account of the crime and that of

accomplice Hazen:

Kormondy, in this case, and Hazen, in Hazen v.

State, 700 So.2d 1207 (Fla. 1997), present

different factual scenarios. The trial records are

inconsistent as to the locations of Hazen and

Buffkin at the time of the fatal shot. During

Kormondy’s trial, Mrs. McAdams testified that

Buffkin was with her in the back of the house when

she heard a shot fired. Officer Hall testified

that Kormondy told him in an unrecorded statement

that Buffkin fired the fatal shot and Hazen was in

the back of the house with Mrs. McAdams. In a

tape-recorded confession played for the jury,

Kormondy again said that Buffkin shot the victim.

During Hazen’s trial, Buffkin testified that

Kormondy killed the victim and Hazen was in the

back room with Mrs. McAdams. Hazen testified that

he was not present at the scene when the crimes

against the McAdamses were committed.

Id. at 456 n. 1.

Kormondy, 845 So. 2d at 45-46.

B. FIRST POSTCONVICTION PROCEEDING

During Kormondy’s postconviction evidentiary hearing in

2005, testimony was presented in support of the argument that

Kormondy did not shoot Gary McAdams. Curtis Buffkin testified

that it was he, and not Kormondy, who accidentally shot Gary

McAdams (PC-T. Vol. I, 71, 85). Buffkin, who had a .44 pistol,

testified that he planned to rob an occupied home, and although

he discussed this plan with Hazen, he did not discuss it with

Kormondy (PC-T. Vol. I, 77, 78). However, Buffkin knew Kormondy

would participate because they had already committed one burglary

together. And, Buffkin also threatened Kormondy to keep quiet

and if he said anything, “something is going to go on, man” (PC-

T. Vol. I, 80).

Buffkin stated he lied previously because he didn’t want to

get the death penalty and “I figured since [K]ormondy was going

to run his mouth, I’m going to put him where he’s got to face the

death penalty, not me” (PC-T. Vol. I, 85). Buffkin testified that

he and Hazen raped Mrs. McAdams (PC-T. Vol. I, 86).

After entering the house, Buffkin told Kormondy and Hazen to

pull the blinds and the phone cords (PC-T. Vol. I, 87). Kormondy

and Hazen also began searching the house, and Hazen found a .38

in the bedroom (PC-T. Vol. I, 87). Buffkin took the .38 and gave

Kormondy the .44 and stated to Gary McAdams, “What are you going

to do with this…?” (PC-T. Vol. I, 87). Buffkin and Hazen took

Mrs. McAdams to the back room while Kormondy stayed with Gary

McAdams (PC-T. Vol. I, 87). Buffkin took the .38 so that Gary

Buffkin thought he might have to shoot Kormondy and Hazen

if they did not go with him (PC-T. Vol. I, 77).

When asked if Kormondy raped Mrs. McAdams, Buffkin stated

he didn’t see Kormondy rape her and Kormondy didn’t tell him that

he had (PC-T. Vol. I, 86).

McAdams would see the .44 pointed at him by Kormondy (PC-T. Vol.

I, 88). Buffkin brought Mrs. McAdams back to Gary McAdams,

naked. Kormondy went back in the bedroom and Buffkin still had

the .38 (PC-T. Vol. I, 88).

Buffkin testified that when Mrs. McAdams was brought back to

Gary McAdams, he (Buffkin) gave him a beer. According to

Buffkin, Hazen then stated he wasn’t through with Mrs. McAdams,

and he took her back to the bedroom and Kormondy followed.

Kormondy came back to the kitchen while Hazen stayed in the

bedroom (PC-T. Vol. I, 95). Kormondy then began to look through

Mrs. McAdams’ purse (PC-T. Vol. I, 95). When asked why he killed

Gary McAdams, Buffkin stated, “I told him to keep his fucking

head down, and at that time when I bumped him in the head, the

gun fired off. I couldn’t – there wasn’t nothing I could do to

save him. If I could bring the man back, I would love to bring

him back” (PC-T. Vol. I, 97).

After Gary McAdams fell back, Buffkin told Kormondy, “Man,

let’s get this stuff and let’s go.”… “Call back there and holler,

Bubba, let’s go” (PC-T. Vol. I, 97-98). Buffkin further stated,

“At the time, I figured he killed Mrs. McAdams at that time

because I heard the gunshot go off back there when I was getting

ready to go out the door. If I had known that she was not dead,

I would have turned around, since Gary was already dead, I would

have went back there and killed her” (PC-T. Vol. I, 98).

James Hazen testified at the evidentiary hearing that he saw

Buffkin holding a gun to Gary McAdams’ head (PC-T. Vol. I, 108).

Hazen did not see Buffkin shoot Gary McAdams, but he did see

Buffkin holding the victim’s pistol to his head (PC-T. Vol. I,

109).

Buffkin later told Hazen, “If it didn’t happen like that,

I was going to have to shoot him anyhow.” (PC-T. Vol. I, 110).

Hazen testified that he was the one who shot the gun in the

bedroom where Mrs. McAdams was when Gary McAdams was killed (PC-

T. Vol. I, 113). Hazen was on the floor with Mrs. McAdams in the

bedroom when he accidentally fired the gun (PC-T. Vol. I, 114).

In its order denying postconviction relief, the trial

court found Buffkin’s testimony to be incredible on the basis

that he manufactured his testimony in order to give himself the

opportunity to escape from custody:

It is apparent to the Court, from the

contradictions in Buffkin’s evidentiary hearing

testimony, along with the other testimony provided at

evidentiary hearing, that the sole reason Buffkin

claimed that he shot Mr. McAdams was to afford Buffkin

an opportunity to come to court and to escape. Buffkin

has escaped from custody in the past; in fact, he was

an escapee from prison when he participated in the

events at the McAdamses’s home. The Court finds that

Buffkin fabricated his most recent statement in an

attempt to escape again. The Court also notes that

Buffkin admitted at the evidentiary hearing that he had

lied to “everybody,” including the Court. The Court

finds it difficult to believe that Buffkin, who

obviously had an ulterior motive in fabricating his

most recent statement, is now testifying to the truth

concerning the events that occurred at the McAdamses’s

house.

(PC-R. 990).

Hazen had the .44 caliber weapon, which was the one Buffkin

brought into the house (PC-T. Vol. I, 110)

The trial court also rejected Hazen’s testimony.

In affirming the trial court’s denial of relief, this Court

stated:

Based on the evidence presented at the hearing, the

evidence presented at trial, and the circumstances

presented, the trial court properly found that

Buffkin’s recent statement was not credible and it

would not have changed the outcome of Kormondy’s trial

or penalty phase. Accordingly, the trial court properly

denied relief on this claim.

Kormondy, 983 So. 2d at 440.

C. SUCCESSIVE POSTCONVICTION PROCEEDING

In his successive postconviction motion and its two

subsequent amendments, Kormondy alleged newly discovered evidence

supporting the fact that Buffkin was indeed the shooter.

According to Enoch Hall, who was in jail with Buffkin in

1993,

Buffkin stated that he was going to try to escape.

Buffkin further stated that he had no problem shooting people in

order to escape as he had just “blew McAdams mother f***ing

brains out.” (PC-R2. Vol I, 51-52).

Christopher Lee Michelson stated in an affidavit that he was

incarcerated at Everglades Correction Institution between 1996

and 1998 (PC-R2. Vol I, 77). It was there that Michelson met

Buffkin, who admitted to being the shooter:

While at Everglades together Buffy {Buffkin} told

me the circumstances of his murder conviction. Buffy

stated that he had two co-defendants, one of which was

Hall had been arrested on April 8, 1993 for numerous

charges and he was sentenced to life in December, 1993. Hall was

in the Escambia County jail during this time. Buffkin was

arrested on July 11, 1993 and was also in the Escambia County

jail (PC-R2. Vol I, 52).

Johnny Kormondy who was sentenced to death. Buffy told

me that he was the one that shot and killed the victim.

He stated that he put the shooting on Kormondy because

he knew if he didn’t put it on one of his co-defendants

he was going to be sentenced to death. He chose to put

in on Kormondy because he blamed Kormondy for the

threesome getting caught. Buffy stated that if

Kormondy kept his mouth shut none of them would have

been apprehended.

(PC-R2. Vol I, 77).

Russell Binstead heard Buffkin’s confession to being the

shooter in 2011. In his affidavit, Binstead stated:

2. I met Curtis Buffkin while incarcerated at

Union Correctional Institution in approximately 2011.

We were in the same dorm. Buffkin and I were tight.

3. On multiple occasions between the time we met

in 2011 and the time he was transported to FSP he

discussed his murder case with me.

4. Buffkin told me that it was he who should be

on death row. He further stated he was the person who

killed the victim in his case. He explained to me that

he had two co-defendants one of which has a life

sentence and one who received a death sentence.

5. Buffkin told me that he felt guilty that one

of his co-defendants had a death sentence for a murder

he committed.

(PC-R2. Vol I, 78-79).

Additionally, according to Roger Livingston, Buffkin stated

in 2012 that Kormondy did not kill the victim. In his affidavit,

Livingston stated:

2. I’m from the Pensacola area. I have been

aware of the McAdams murder for years. I have known

Curtis Buffkin’s Uncle Joe for years. I was as Century

CI when Buffkin’s co-defendants were tried. I read

about the case in the paper.

3. In around 2012 I met Curtis Buffkin at UCI.

I knew who he was but I stayed away from him.

Eventually we ended up in the same dorm.

4. Eventually Buffkin approached me because he

knew I was from Pensacola also. We talked about his

case.

5. I do not know Johnny Kormondy. I did however

know that Buffkin had co-defendants and that one was on

death row.

6. Buffkin told me that his co-defendant who was

on death row was not the one that killed the victim.

He told me that he was going to try to free the man and

that one day he would end up on death row himself.

7. I am in no way a friend of Buffkins. I don’t

like nor do I respect him. I find the crime he and his

co-defendants were convicted of as the lowest of the

low.

(PC-R2. Vol I, 80-81).

Finally, John Turner also had a similar experience upon

encountering Buffkin in 2012. According to Turner’s affidavit:

1. My name is John Turner. I am currently

incarcerated at UCI. In 2012 I was incarcerated in the

same dorm as Buffkin at this camp.

2. At one point in 2012 I was asked to deliver a

transcript to Buffkin by another inmate. I read the

transcript while it was in my possession.

3. When I gave the transcript to Buffkin he told

me that he put his co-defendant on death row and felt

bad about it. He told me he was the ring leader and

responsible for the murder. He stated that his co-

defendant who was on death row was there wrongfully.

(PC-R2. Vol I, 129-30).

SUMMARY OF THE ARGUMENT

1. The circuit erred in summarily denying Kormondy’s claim

of newly discovered evidence. Further, the circuit court erred

in its findings as to diligence and as to whether the newly

discovered evidence would probably result in a sentence of less

than death.

2. Undersigned counsel failed to adequately raise critical

issues regarding constitutional violations of Strickland and/or

Brady/Giglio. In accordance with the United States Supreme

Court’s decisions in Martinez v. Ryan and Trevino v. Thaler, as

well as this Court’s equitable powers, Kormondy is entitled to

equitable relief and consideration of the merits.

STANDARD OF REVIEW

The claims presented in this appeal are constitutional

issues involving questions of law and fact. Normally, where

evidentiary development has been permitted in circuit court,

rulings of law are reviewed de novo while deference to the trial

court is given as to findings of fact. However, here the circuit

court denied an evidentiary hearing, and therefore, the facts

alleged by the Appellant must be accepted as true for purposes of

this appeal in order to determine whether the Appellant is

entitled to an opportunity to present evidence in support of his

factual allegations. Peede v. State, 748 So. 2d 253 (Fla. 1999);

Gaskin v. State, 737 So. 2d 509 (Fla. 1999); Lightbourne v.

Dugger, 549 So. 2d 1364 (Fla. 1989). The circuit court’s legal

analysis is subject to de novo review by the Court.

ARGUMENT I

NEWLY DISCOVERED EVIDENCE DEMONSTRATES THAT KORMONDY’S

DEATH SENTENCE IS CONSTITUTIONALLY UNRELIABLE IN

VIOLATION OF THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES CONSTITUTION.

A. INTRODUCTION

In Jones v. State, 591 So. 2d 911 (Fla. 1991), this Court

adopted the standard for evaluating claims of newly discovered

evidence. A court must first determine that the “asserted facts

‘must have been unknown by the trial court, by the party, by

counsel at the time of trial, and it must appear that defendant

or his counsel could not have known them by the use of

diligence.’” Id. at 916 (quoting Hallman v. State, 371 So. 2d

482, 485 (Fla. 1979). Next, a court must determine that “[t]he

newly discovered evidence must be of such a nature that it would

probably produce an acquittal on retrial.” Id. at 915. The newly

discovered evidence standard is the same whether it pertains to

guilt/innocence or penalty phase. Scott v. Dugger, 604 So. 2d 465

(Fla. 1992). Thus, the issue as to the death sentence is whether

the new evidence would probably result in a sentence of life

rather than death.

B. DILIGENCE

Following Enoch Hall’s 1993 encounter with Buffkin, Hall was

later convicted and sentenced to death in another case in 2010.

In August, 2014, he encountered Kormondy in prison and informed

him of Buffkin’s statement.

Kormondy proceeded to contact undersigned counsel by

letter, informing him that he had something important to discuss.

Undersigned counsel met with Kormondy in August, 2014, and

counsel’s investigator met with Kormondy in October, 2014.

Thereafter, undersigned counsel contacted Hall’s attorney on

November 5 and 7

, 2014, to discuss the possibility of

interviewing Hall (PC-R2. Vol. 1, 69-70, Att. A). Hall’s

attorney informed undersigned counsel that she would discuss the

matter with Hall (PC-R2. Vol. 1, 69-70, Att. A). Thereafter,

Kormondy’s warrant was signed on November 24, 2014. On December

2, 2014, Hall’s attorney contacted undersigned and informed him

that Hall was willing to meet with him.

Undersigned counsel interviewed Hall on December 3, 2014.

In that interview, Hall confirmed his statements to Kormondy

regarding what Buffkin said. In addition, Hall provided counsel

with other names of individuals who may have overhead Buffkin

confessing to being the shooter.

Additionally, on December 3, 2004, undersigned counsel

interviewed Buffkin, who confirmed his statements to Hall.

Buffkin also stated that he previously told numerous other

inmates that he was the shooter. These inmates included

Christopher Michelson, Michael Griffin, Gerald Gallager, Russell

Binstead and an individual with the last name of Livingston.

Undersigned counsel’s investigator proceeded to locate,

interview, and obtain affidavits on December 5, 2014, from

Buffkin recognized Hall upon being shown a photo of him.

Michelson, Binstead and Livingston. From Binstead, undersigned

counsel learned of another individual with pertinent knowledge of

Buffkin’s admissions, John Turner. Undersigned counsel’s

investigator thereafter interviewed and obtained an affidavit

from Turner on December 9, 2014.

The asserted facts were unknown by the trial court, by

Kormondy, or by counsel at the time of trial. Further, Kormondy

or his counsel could not have known them by the use of diligence.

Undersigned counsel first learned of Enoch Hall in August of this

year. He was in the process of investigating this information

for the purpose of filing a successive postconviction motion

prior to the death warrant being signed. Undersigned counsel

ultimately filed a successive motion and two amendments on

December 4, 7, and 9

, 2014, well within one year of being

alerted to this information. See Clark v. State, 35 So. 3d 880,

892 (Fla. 2010)(“Claims of newly discovered evidence must be

raised within one year of the time of discovery.”).

C. THE NEW EVIDENCE WOULD PROBABLY RESULT IN A LIFE SENTENCE

The newly discovered evidence would probably result in a

life sentence. Buffkin, who was offered a plea bargain by the

State in return for assistance in the prosecution of Kormondy and

Hazen, received a life sentence.

This Court subsequently set

aside Hazen’s death sentence on the ground that he was less

culpable than Buffkin. Hazen v. State, 700 So. 2d 1207, 1214

Buffkin’s plea bargain was provided on the basis that he

wasn’t the shooter (HT. 946-47, 1016).

(Fla. 1997). Conversely, in upholding Kormondy’s death sentence,

this Court stated that “[t]he evidence from trial and the

resentencing demonstrates that Kormondy committed the homicide

and is more culpable than his codefendants; therefore, his

sentence of death is not disproportional on this basis.”

Kormondy, 845 So. 2d at 47.

The aforementioned newly discovered evidence establishes

that Kormondy was not more culpable than Buffkin or Hazen, and it

provides credibility to Buffkin’s evidentiary hearing testimony

that he was in fact the shooter. Further, the newly discovered

evidence establishes that the trial court’s basis for the denial

of relief was erroneous. Buffkin’s admission that he was the

shooter as far back as 1993 defies the notion that he

manufactured his testimony more than a decade later in order to

effectuate an escape.

The degree of participation and relative culpability of an

accomplice or joint perpetrator, together with any disparity of

treatment received by such accomplice as compared with that of

the capital offender being sentenced, are proper factors to be

taken into consideration in the sentencing decision. Craig v.

State, 510 So. 2d 269 (Fla. 1987). Where a defendant is guilty

of murder but not the actual killer, and his codefendant receive

a sentence of life, these circumstances justify a jury’s

Indeed, the newly discovered evidence establishes that

Buffkin maintained that he was the shooter not only years before

his 2005 evidentiary hearing testimony, but years later as well.

recommendation of life in prison. Malloy v. State, 382 So. 2d

1190 (Fla. 1979).

The law provides that an equally culpable codefendant’s life

sentence constitutes newly discovered evidence sufficient to

grant postconviction relief. Scott v. Dugger, 604 So. 2d 465

(Fla. 1992). Surely newly discovered evidence of Buffkin’s

admission as being the shooter justifies that Kormondy receive a

life sentence.

Indeed, in State v. Mills, 788 So. 2d 249 (Fla. 2001), this

Court affirmed the lower court’s grant of relief based on newly

discovered evidence concerning the true culpability of those

individuals involved in the crime. The newly discovered evidence

consisted of the testimony of an inmate who had been incarcerated

with Mills’ co-defendant, Ashley, in 1980 and obtained a

confession from Ashley. Id. at 250. Mills’ attorneys did not

know that Ashley had confessed to an inmate that he had been

incarcerated with until twenty years after the confession

occurred. Based upon the co-defendant’s confession that he was

the one who had killed, Mills was granted relief. Id. The result

in Kormondy’s case must be the same.

D. THE CIRCUIT COURT’S ORDER

Initially, it must be pointed out that the circuit court

denied an evidentiary hearing as to this issue. Ignoring well

settled law attendant to the granting of an evidentiary hearing

in a postconviction proceeding, the circuit court in conclusory

fashion stated that after hearing arguments, the successive

motion and the amendments did not require an evidentiary hearing

for proper resolution (PC-R2. Vol. III, 183).

“Under rule 3.850, a postconviction defendant is entitled to

an evidentiary hearing unless the motion and record conclusively

show that the defendant is entitled to no relief.” Gaskin v.

State, 737 So. 2d 509, 516 (Fla. 1999). Accord Patton v. State,

784 So. 2d 380, 386 (Fla. 2000); Arbelaez v. State, 775 So. 2d

909, 914-15 (Fla. 2000). The rule is the same for a successive

postconviction motion, where allegations of previous

unavailability of new facts, as well as diligence of the movant,

warrant evidentiary development if disputed or if a procedural

bar does not “appear[] on the face of the pleadings.” Card v.

State, 652 So. 2d 344, 346 (Fla. 1995).

Factual allegations as

Successive Rule 3.850 petitioners have received

evidentiary hearings based on newly discovered evidence and

merits consideration. State v. Mills, 788 So. 2d 249, 250 (Fla.

2001)(the Florida Supreme Court affirmed the circuit court’s

grant of sentencing relief on a third Rule 3.850 motion premised

upon a testifying co-defendant’s inconsistent statements to an

individual while incarcerated); Lightbourne v. State, 742 So. 2d

238, 249 (Fla. 1999)(remanding for an evidentiary hearing to

evaluate the reliability and veracity of trial testimony);

Melendez v. State, 718 So. 2d 746 (Fla. 1998)(noting that lower

court held an evidentiary hearing on defendant’s allegations that

another individual had confessed to committing the crimes with

which defendant was charged and convicted); Swafford v. State,

679 So. 2d 736, 739 (Fla. 1996)(remanding for an evidentiary

hearing to determine if evidence would probably produce an

acquittal); Roberts v. State, 678 So. 2d 1232, 1235 (Fla.

1996)(remanding for evidentiary hearing because of trial witness

recanting her testimony); Scott v. State, 657 So. 2d 1129, 1132

(Fla. 1995)(holding that lower court erred in failing to hold an

evidentiary hearing and remanding); Johnson v. Singletary, 647

So. 2d 106, 111 (Fla. 1994)(remanding case for limited

evidentiary hearing to permit affiants to testify and allow

appellant to “demonstrate the corroborating circumstances

to the merits of a constitutional claim as well as to issues of

diligence must be accepted as true, and an evidentiary hearing is

warranted if the claims involve “disputed issues of fact.”

Maharaj v. State, 684 So. 2d 726, 728 (Fla. 1996). In Kormondy’s

case, the lower court erroneously failed to grant an evidentiary

hearing despite allegations regarding the substance of the new

evidence, the constitutional claims based upon the new evidence,

and Kormondy’s diligence in attempting to unearth the new

evidence.

Without the benefit of a hearing, the circuit court provided

several procedural possibilities on which Kormondy’s claim could

be denied.

The circuit court first “questioned” whether

Kormondy’s claim qualifies as newly discovered evidence (PC-R2.

Vol. III, 187). Citing to this Court’s decisions in Marek v.

State, 14 So. 3d 985, 989 (Fla. 2009) and Sireci v. State, 773

So. 2d 34, 40 n10 (Fla. 2000), the circuit court stated that

Kormondy’s claim “appears” to be procedurally barred (PC-R2.

Vol. III, 188). According to the court’s reasoning, “The claim

is nothing more than Defendant’s attempt to go behind the

sufficient to establish the trustworthiness of [newly discovered

evidence]”); Jones v. State, 591 So. 2d 911, 916 (Fla.

1991)(remanding for an evidentiary hearing on allegations that

another individual confessed to the murder with which Jones was

charged and convicted and was seen in the area close in time to

the murder with a shotgun).

The circuit court’s order is rather ambiguous as to

whether it was actually denying Kormondy’s claim on the

procedural grounds cited, or whether it was citing these grounds

merely as possible reasons for a denial.

previous credibility finding regarding Mr. Buffkin’s 2005

testimony and relitigate the prior claim that Mr. Buffkin was the

murder, and because Mr. Buffkin is sentenced to life, Defendant

should be sentenced to life too.” (PC-R2. 188).

Contrary to the circuit court’s determination, this Court’s

decisions in Marek and Sireci do not prohibit a defendant from

presenting new factual evidence that may call into question a

court’s prior determination. Indeed, in Marek, this Court did

not deny Marek’s claims regarded his co-defendant’s inculpatory

statements as being procedurally barred. Rather, unlike in

Kormondy’s case, Marek was afforded an evidentiary hearing. Marek

14 So. 3d at 988-89. Based on a consideration of those facts

developed at the evidentiary hearing, this Court determined that

Marek was not entitled to relief. Id. at 992-98.

The circuit court’s reliance on Sireci is likewise

misplaced. There, this Court explained in a footnote that claims

raised on direct appeal are procedurally barred in postconviction

when the defendant uses a different argument to relitigate the

same issue. Sireci, 773 So. 2d at 40, n10. Here, unlike in

Sireci, Kormondy is not couching his claim based on a different

argument with regard to a set of facts that have already been

litigated before the court. Rather, he is presenting newly

discovered factual evidence in support of his entitlement to

relief. The circuit court in its order failed to recognize that

the question here is whether the newly discovered factual

evidence “weakens the case against [Kormondy] so as to give rise

to a reasonable doubt as to his culpability.” Johnston v. State,

27 So. 3d 11, 18-19 (Fla. 2010)(citation omitted).

The circuit court also implies that a portion of Kormondy’s

claim “could very well be considered procedurally barred” based

on a lack of diligence (PC-R2. Vol. III, 189). Citing to

Buffkin’s testimony at the 2005 evidentiary hearing that he told

other inmates that he was the one who had shot and killed the

victim (PC-R2. Vol. III, 188), the circuit court claims that

“counsel could have previously asked Mr. Buffkin to identify the

names of the other inmates to whom he had confessed.” (PC-R2.

Vol. III, 189). Thus, according to the circuit court, “As Mr.

Buffkin confessed to both Mr. Hall and Mr. Michelson before 2005,

counsel could have discovered this information much sooner than

2014 if diligence had been employed.” (PC-R2. Vol. III, 189).

The circuit court in its order never addresses diligence as

to Livingston, Turner and Binstead, each of whom encountered

Buffkin after 2005. Presumably then, the circuit court takes no

issue as to Kormondy’s assertion of diligence as to these three

individuals. And with regard to Hall and Michelson, Kormondy’s

assertion of diligence is not rebutted by the record. While the

circuit court refers to one portion of Buffkin’s 2005 testimony

indicating that he told other individuals that he was the

triggerman, the court wholly ignores a later portion of Buffkin’s

testimony in which it was clarified that he either didn’t tell or

couldn’t identify other individuals that he informed he was the

triggerman:

Q. The only person you can identify at this

point in time that you discussed this with that you

were the triggerman, the only person you can actually

identify is the investigator sitting here in court, the

investigator for the defendant; is that correct?

A. Not - - I can say he came down to FSP and he

asked me what happened, and I basically told him on my

own free will.

MR. EDGAR: Your Honor, he is not being

responsive. I asked him is that the only person you

can identify.

THE COURT: Answer that question. He’s asking

you is this investigator here the only person that

you’ve told that you were the one that killed Mr.

McAdams.

THE WITNESS: Yes, sir, it was.

THE COURT: Next question.

(PC-R.2 Vol. III, 304-05)(emphasis added). Certainly, it would

not be unreasonable for Kormondy’s counsel not to follow up with

Buffkin after he told the court that he could not identify or did

not tell other individuals. The fact is that the only reason the

issue came to light was because counsel learned from another

party, Enoch Hall, that Buffkin had made statements. The circuit

court never actually addresses the issue at hand, whether counsel

was diligent in pursuing the information provided by Hall through

Kormondy.

Next, the circuit court claims that the statements from the

five inmates would not have been admissible at trial (PC-R2. Vol.

III, 189). According to the circuit court, the proposed newly

discovered evidence is merely composed of hearsay statements that

would not have fallen under any hearsay exception to become

admissible as substantive evidence or for impeachment purposes

PC-R2. Vol. III, 190).

Here, the circuit court’s order is erroneous as a matter of

law. As this Court explained in Marek, these statements would

have been admissible at Kormondy’s penalty phase:

Section 921.141(1), Florida Statutes (2008), expressly

provides for the admission of hearsay testimony in the

penalty phase of a death case:

In the [penalty phase] proceeding, evidence may be

presented as to any matter that the court deems

relevant to the nature of the crime and the

character of the defendant and shall include

matters relating to any of the aggravating or

mitigating circumstances enumerated in [the

statute]. Any such evidence which the court deems

to have probative value may be received,

regardless of its admissibility under the

exclusionary rules of evidence, provided the

defendant is accorded a fair opportunity to rebut

any hearsay statements. However, this subsection

shall not be construed to authorize the

introduction of any evidence secured in violation

of the Constitution of the United States or the

Constitution of the State of Florida.

(Emphasis added.) This statute provides “wide latitude

... in admitting penalty-phase evidence.” Rutherford v.

State, 727 So.2d 216, 221 (Fla.1998). The admissibility

of hearsay, however, is not unlimited. The statute

clearly conditions the admission of hearsay by the

State on whether the defendant has a fair opportunity

to rebut it. Further, we have held that the same

condition applies to the admission of hearsay evidence

presented by the defendant. Blackwood v. State, 777

So.2d 399, 411-12 (Fla.2000) (“[T]he statute clearly

states that the defendant must have an opportunity to

fairly rebut the hearsay evidence in order for it to be

admissible.... This rule applies to the State as

well.”); see Hitchcock v. State, 578 So.2d 685, 690

(Fla.1990) (While the rules of evidence have been

relaxed somewhat for penalty proceedings, they have not

been rescinded. We find no merit to Hitchcock’s claim

that the state must abide by the rules but that

defendants need not do so.”). Accordingly, because in

this case we assume that the due diligence prong was

met, Wigley’s statements to the six witnesses would be

admissible in a new penalty phase only if the State

would have a fair opportunity to rebut the evidence. As

explained below, the State has ample, admissible

rebuttal evidence; thus, Wigley’s statements would be

admissible.

Marek v. State, 14 So. 3d 985, 996 (Fla. 2009). Contrary to the

circuit court’s determination, Buffkin’s statements to the five

witnesses would be admissible in a new penalty phase.

Moreover, if Buffkin testified as he did in 2005 and the State

contended that he fabricated his testimony, as it did in 2005,

then the statements would be admissible as prior consistent

statements. See section 90.801(2)(b), Fla. Stat. (2008).

Further, because Buffkin’s plea deal was contingent on him

testifying truthfully (HT. 1017), these statements would also be

admissible as statements against interest. See section

90.804(2)(2), Fla. Stat. (2008).

The circuit court also found in its order that the hearsay

statements would be cumulative to Kormondy’s oral and recorded

statements presented at trial indicating that Buffkin was the

person who killed Mr. McAdams, as well as to Buffkin’s and

Hazen’s prior testimony (PC-R2. Vol. III, 190). The circuit

court’s order is again erroneous as these witnesses would be

testifying to admissions give by Buffkin at different times and

under different circumstances over a number of years. Hall would

testify to an incident in 1993; Michelson to an incident between

Certainly, the State would have a fair opportunity to

rebut these statements.

1996 and 1998; Binstead to an incident in 2011; Livingston to an

incident in 2012; and Turner to a separate incident in 2012.

Buffkin did not previously testify to any of these incidents, and

neither Kormondy nor Hazen were even present for any of them.

The circuit court in its order also found, alternatively,

that the results of the trial and sentence would not have been

different (PC-R2. Vol. III, 190-91). In arriving at this

determination, the circuit court relied primarily on the

testimony of two witnesses, Mrs. McAdams, who testified that

Buffkin was the person with her in the bedroom when her husband

was shot in the kitchen (PC-R2. Vol. III, 192); and William Long,

who testified that Kormondy confessed to killing Mr. McAdams (PC-

R2. Vol. III, 192).

The circuit court concluded that “[t]he

newly discovered evidence, when weighed with the evidence adduced

at trial, and the previously submitted newly discovered evidence

considered at the 2005 evidentiary hearing, would not have

produced an acquittal or yielded a less severe sentence for

Defendant.” (PC-R2. Vol. III, 193)(fn omitted).

In arriving at its determination, the circuit court ignored

the fact that all three defendants in the case, Buffkin, Kormondy

and Hazen, have indicated that Buffkin was the shooter. Further,

the circuit court ignored the fact that Buffkin has consistently

told numerous individuals over the course of approximately twenty

According to the circuit court, “Mr. Long’s testimony

established that he and Defendant shared a close friendship,

making his testimony regarding Defendant’s confession of great

relevance and strength.” (PC-R2. Vol. III, 192).

years that he was the shooter and that he pointed the finger at

Kormondy in order to avoid a death sentence. And, the circuit

court ignored the fact that the basis for which Buffkin had

previously been found incredible, that he concocted his testimony

in 2005 in order to effectuate an escape, is no longer true.

Additionally, the circuit court in its order ignored the

suspect nature of William Long’s testimony. Long admitted at

trial that before he heard Kormondy say he was the shooter, Long

had smoked crack and drunk six pitchers of beer (TT1. 1192).

Further, Long acknowledged that when he heard Mr. Kormondy say he

was the shooter, he was on the run from the law for violating

probation (TT1. 1194-97). Additionally, Long was motivated to

turn in Kormondy on the basis of a $25,000 reward he expected to

receive for his testimony (TT1. 1197). Further, as detailed in

Argument II, Long in his deposition testimony did not state that

Kormondy identified himself as the shooter. And as detailed in

Argument II, Long testified falsely to that he received no other

benefit for his testimony when in fact the State talked to the

judge about his charges and he received six months’ community

control (PC-T. Vol. I, 60-61).

As to Mrs. McAdams, in light of the extensive evidence

establishing that Buffkin was the shooter, the circuit court

failed to consider that in light of the harrowing circumstances

she endured, her testimony was understandably inaccurate. Even

when Buffkin was testifying as a State witness at Hazen’s trial,

he stated that it was Hazen who was upstairs when Kormondy shot

Mr. McAdams. See Hazen, 700 So. 2d at 1213-14. Moreover,

contrary to Mrs. McAdams testimony that there was one perpetrator

with her, Buffkin, at the time of the gunshot, she had previously

indicated otherwise. Deputy Scherer who was the first law

enforcement officer at the scene and who questioned Mrs. McAdams

at that time, testified in his deposition that Mrs. McAdams

stated that there were two assailants in the bedroom when the

gunshot was fired (PC-R. Vol. V, 860). As the federal district

court explained in its order during Kormondy’s habeas proceeding:

If Mrs. McAdams really said two assailants were with

her when the shot was fired, it would cast at least

some doubt on her ability to recall what happened.

This, in turn, would cast some doubt on her statement

that Mr. Buffkin was with her when the shot was fired.

Kormondy v. Tucker, No. 3:08-cv-00316-RH, at 40-41 (N.D. Fla.

2011).

The federal district court made this statement in regard

to a claim brought in Kormondy’s federal habeas proceeding

asserting that trial counsel was ineffective for failing to

impeach Mrs. McAdams with this information. The federal district

court found that “[i]f failing to do so was not ineffective

assistance, it was close.” Id. at 41. The federal district court

took issue with this Court’s determination that counsel was not

ineffective, finding that “[a]s an original matter, one might

reasonably find prejudice”:

The Florida Supreme Court focused on the second

and third points and held that there was no prejudice.

The analysis was reasonable but hardly conclusive. The

court noted correctly that Mrs. McAdams consistently

identified Mr. Buffkin as being with her when the shot

was fired. But impeaching her—undermining confidence in

her account—would have been the whole point of

introducing the two-assailant statement. The court

said Mr. Long testified that Mr. Kormondy admitted that

he was the shooter, but Mr. Long faced substantial

credibility issues of his own. As an original matter,

E. CONCLUSION

Kormondy submits that he was diligent in presenting his

claim of newly discovered evidence. Further, Kormondy submits

that when a cumulative analysis of the new evidence, along with

all prior claims and the complete record, is conducted, see State

v. Gunsby, 670 So. 2d 920 (Fla. 1996); Kyles v. Whitley, 115

S.Ct. 1555 (1995); Swafford v. State, 679 So. 2d 736 (Fla. 1996);

Lightbourne v. State, 742 So. 2d 238 (Fla. 1999), this would

probably result in a sentence of life.

At the very least, Kormondy submits that an evidentiary

hearing is warranted as the records and files in this cause do

not conclusively rebut his claim based on the newly discovered

evidence.

ARGUMENT II

KORMONDY IS ENTITLED TO EQUITABLE RELIEF AND

CONSIDERATION OF THE MERITS REGARDING HIS CLAIM THAT

HE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL AND/OR

THE STATE VIOLATED BRADY V. MARYLAND AND GIGLIO V.

UNITED STATES.

When counsel for an initial collateral review proceeding is

ineffective, and courts refuse to consider those claims that

should have been raised in the initial collateral proceedings but

one might reasonably find prejudice, disagreeing with

the Florida Supreme Court.

Id. at 42. Ultimately, however, in light of the stringent legal

standards under the AEDPA, the federal district court was unable

to say that this Court’s ruling was contrary to or an

unreasonable application of clearly established federal law. Id.

were not (e.g., ineffective assistance of trial counsel and

claims under Giglio v. United States and Brady v. Maryland), the

defendant suffers the inequitable result of having those

constitutional claims procedurally barred and not subject to

meaningful review. See Trevino v. Thaler, 133 S.Ct. 1911, 1921

(2013); Martinez v. Ryan, 132 S.Ct. 1309, 1316 (2012). “When an

attorney errs in initial-review collateral proceedings, it is

likely that no state court at any level will hear the prisoner’s

claim.” Martinez, 132 S.Ct. at 1316. The “failure to consider a

lawyer’s ineffectiveness during an initial-collateral proceeding

as a potential cause for excusing a procedural default will

deprive the defendant of any opportunity at all for review of an

ineffective-assistance-of-trial-counsel claim.” Trevino, 133

S.Ct. at 1921.

In the instant case, undersigned counsel failed to

adequately raise critical issues regarding constitutional

violations of Strickland and/or Brady/Giglio. These claims

involved the State’s critical witness, William Long. Subsequent

to the crimes in question, Kormondy allegedly told Long, who was

Kormondy’s wife’s cousin, about the murder and that it was he who

had accidentally shot Mr. McAdams. Long relayed this comment to

his friend, Chris Roberts. Because Long had an outstanding

warrant for violation of probation and he didn’t want to go to

jail, he asked Roberts to report Kormondy to law enforcement so

they could split the reward (TT1. Vol. VII, 1188).

However,

law enforcement eventually spoke to Long and convinced him to

wear a wire in order to get a confession from Kormondy (PC-T.

Vol. I, 56). In order to avoid jail, Long reluctantly wore a

wire and spoke to Kormondy at Kormondy’s place of employment (PC-

T. Vol. I, 58).

Long was arrested anyway, and was released on a $5,000

bond, which he did not pay (PC-T. Vol. I, 59-60; PC-R. Vol. IV,

580-81). At trial, Kormondy’s counsel asked Long if law

enforcement made him a deal so he wouldn’t have to go to jail.

Long stated that the only promise made to him was he wouldn’t be

locked up with Kormondy (TT1. Vol. VII, 1196). Long was also

asked if anyone appeared on his behalf at his violation of

probation hearing:

Q. And no one spoke up on your behalf on any

violation of probation.

A. No.

(TT1. Vol. VII, 1197-98).

However, at the postconviction evidentiary hearing, Long

testified differently:

A $50,000 reward for information had been offered by the

police.

In that conversation, Long said, “I told him that some

cops had come by my house, and they were asking me about the

murder and this, that and the other. And I asked him if he had

told anybody else about him killing the dude. And he said, Man,

I don’t know what you’re talking about, or something, and I said,

Look, they know something. I said, I’m leaving town. And he

said, Well, I’m leaving town, too.” (TT2. Vol. IV, 391).

Q. Did you have conversation with Mr. Hall or

Mr. Cotton regarding your prosecution or anything that

it would do for you?

A. When it came up when they gave me the Public

Defender’s Office, I called and they figured out it was

going to be a conflict of interest. They gave me Peter

W. Mitchell as a court-appointed attorney. I went and

met with him. He told me to pack my toothbrush I was

going to jail for violation of probation.

I called Allen Cotton and he told me if I—

Q. I’m sorry?

A. I contacted Allen Cotton. He said if I ran

or did not show up for court, that he would find me,

which is understandable. He told me to go to court. I

went to court. He stood up beside me, he talked to the

judge, and the judge put me on six months’ community

control. And I completed it with flying colors. Never

had any problems whatsoever.

(PC-T. Vol. I, 60-61)(emphasis added).

Additionally, during Kormondy’s trial Long attributed

the following two statements to him: “The only way they would

catch the guy that shot Mr. McAdams was if they were walking

right behind us” (TT1. Vol. VII, 1186); and “The only way they

would catch the man that shot Mr. McAdams was if they were right

behind us. Word for word, that’s what he said” (TT1. Vol. VII,

1201). However, Long’s deposition testimony was different. He

stated, “Yeah, the only way they can catch the guy that they did

this is if they were walking behind us right now” (Long

deposition, page 8, on Dec. 7, 1993). According to Long’s

deposition testimony, Kormondy did not say, “shot Mr. McAdams”;

rather he stated Kormondy said, “the guy that they did this.”

Moreover, at the postconviction evidentiary hearing, Long

testified he was told that initially his bond was set at $20,000

(PC-T. Vol. I, 54), which the Warrant confirms, and later was

reduced to $5,000 (PC-R. Vol. V, 848-50). Even though Long did

not pay any of the bond (PC-R. Vol. IV, 580-81), he was still

released (PC-T. Vol. I, 59-60). At the evidentiary hearing Long

testified, “If I’m not mistaken, I got out on pretrial release. I

went straight from the jailhouse across the street and signed up

for it, I know” (PC-T. Vol. I, 59). At trial, Kormondy’s counsel

did not ask and Long did not mention he had a $5,000 bond that he

did not have to pay to get out of jail. The State asked Long if

he went to jail, and Long stated he did, but signed his own bond

to get out (TT. Vol. VII, 1197). There was no mention of the

unpaid $5,000 bond.

Trial counsel’s failure to impeach Long with his prior

deposition and to adequately investigate benefits he received

from the State, fell below expected standards of reasonableness.

Strickland. The State’s failure to disclose benefits received by

Long and to allow him to testify falsely likewise violated

Kormondy’s constitutional rights. See Brady v. Maryland; Giglio

v. United States. “The jury’s estimate of the truthfulness and

reliability of a given witness may well be determinative of guilt

or innocence, and it is upon such subtle factors as the possible

interest of the witness in testifying falsely that a defendant’s

life or liberty may depend.” Napue v. Illinois, 360 U.S. 264

(1959).

Here, the credibility of the State’s key witness, Long,

was critical to the State’s case against Kormondy. This is

evident by the fact that in affirming Kormondy’s death sentence

and finding that it was not disproportionate to the life

sentences of his two codefendants, this Court relied on Long’s

testimony that Kormondy was the triggerman. Kormondy, 845 So. 2d

at 48. Had the jury been informed of the undisclosed benefit

which Long received, this would have cast suspicion upon the

veracity of the information about which Kormondy purportedly told

Long. This, combined with the other impeachable evidence of

Long, (under influence of drugs, felon, and reward), would likely

have resulted in a rejection of Long’s testimony that Kormondy

admitted to being the shooter.

However, because undersigned counsel failed to properly

raise Kormondy’s claim, it was procedurally defaulted, and thus

procedurally barred from subsequent consideration. In its

opinion on postconviction appeal, this Court stated:

First, Kormondy alleges trial counsel was ineffective

for failing to impeach William Long regarding his prior

felony conviction, the benefits he received from the

State in exchange for his testimony against Kormondy,

and the inconsistency between Long’s deposition

statements and his trial testimony. The only claim that

is properly before this Court is the claim that trial

counsel failed to impeach Long regarding his prior

felony conviction.

fn4 With regard to the benefits Long received from

the State and the inconsistency between Long’s

deposition statements and trial testimony, these

arguments are not properly brought under this

claim because they were not raised as ineffective

assistance of trial counsel claims in the

postconviction motion. As a result, the trial

court did not address either of these issues. This

Court has held that “an appellate court will not

consider an issue unless it was presented to the

lower court.” Steinhorst v. State, 412 So.2d 332,

338 (Fla.1982).

Kormondy, 983 So. 2d at 432, fn4. Further, during Kormondy’s

federal habeas proceedings, the district court agreed with this

Court’s determination that the claim had not been raised below as

an ineffective assistance claim and thus was procedurally barred:

Mr. Long testified that Mr. Kormondy said he

participated in these crimes and indeed was the

shooter. Mr. Kormondy’s attorney established on cross

examination that at the critical time—when Mr. Long

says he heard Mr. Kormondy admit being the shooter—Mr.

Long was on the run for a probation violation and

had used cocaine and drunk six pitchers of beer. The

attorney also established that Mr. Long expected to

receive a $25,000 reward for his testimony. Mr.

Kormondy now says the attorney also should have

established that Mr. Long had a felony conviction,

falsely said nobody from the state appeared on his

behalf at his probation hearing, gave inconsistent

deposition testimony, and, in exchange for his

trial testimony, was not detained or required to post a

bond.

The Florida Supreme Court rejected the felony-

conviction claim for lack of prejudice and rejected the

other claims because they had not been asserted below

as ineffective-assistance claims. Kormondy v. State,

983 So. 2d 418, 432 & n.4 (Fla. 2007).

The ruling on the felony-conviction claim was

plainly correct. That Mr. Long was under a sentence

for a crime of some sort was obvious from the fact that

he was on the run for a probation violation. And the

fact that he had a felony conviction would have added

little to the substantial circumstances already shown:

he was on the run, had used cocaine and drunk six

pitchers of beer, and now expected a $25,000 reward.

The ruling that Mr. Kormondy failed to raise the

other claims about Mr. Long’s impeachment was also

correct. Mr. Kormondy thus procedurally defaulted

those claims in state court and could obtain relief

here only by showing “cause for the default and actual

prejudice as a result of the alleged violation of

federal law, or demonstrat[ing] that failure to

consider the claims will result in a fundamental

miscarriage of justice.” Coleman v. Thompson, 501 U.S.

722, 750 (1991). Mr. Kormondy has not demonstrated

cause and prejudice or a fundamental miscarriage

of justice. Indeed, Mr. Kormondy has shown no

prejudice at all from the failure to impeach Mr. Long

on the additional grounds now proposed.

Kormondy v. Tucker, No. 3:08-cv-00316-RH (N.D. Fla. 2011)

(emphasis in original).

The United States Supreme Court held in Trevino v. Thaler,

133 S.Ct. 1911 (2013), that there exists an equitable right to

effective collateral counsel in initial collateral proceedings as

to constitutional claims that are not subject to adequate review

on direct appeal. As a result, deficient performance by

collateral counsel will constitute cause to overcome a procedural

bar that arose as a result of collateral counsel’s deficient

performance in presenting constitutional claims that could not

have been adequately reviewed on direct appeal.

Under Trevino, there is an equitable right to adequate

representation during initial-review collateral proceedings

regarding constitutional claims, including a claim regarding a

violation under Strickland, in states such as Texas and Florida

where there is no express rule requiring such non-record

constitutional claims to be raised on direct appeal. Trevino v.

Thaler, 133 S. Ct. 1911, 1918 (2013).

The State of Florida took the position in an amicus brief

filed with the United States Supreme Court in Trevino that

Florida’s scheme for raising a claim that required record

development, such as trial counsel’s performance, was more like

the procedure used by Texas, which was at issue in Trevino. Both

Florida and Texas argued in the United States Supreme Court that

Martinez v. Ryan, 132 S.Ct. 1309 (2012), did not apply to cases

in Florida or Texas because there was no express preclusion from

raising non-record constitutional issues on direct appeal. See

Trevino v. Thaler, United States Supreme Court Case No. 11-10189,

Brief for Amici Curiae Utah and 24 Other States in Support of

Respondent, January 22, 2013. The Supreme Court rejected the

argument proposed by Florida and Texas. That is, the Supreme

Court rejected the notion that Martinez did not apply in those

states where a defendant was not categorically precluded from

raising an ineffective assistance of counsel claim on direct

Unlike Arizona, Texas does not expressly require the

defendant to raise a claim of ineffective assistance of

trial counsel in an initial collateral review

proceeding. Rather Texas law on its face appears to

permit (but not require) the defendant to raise the

claim on direct appeal. Does this difference matter?

Two characteristics of the relevant Texas procedures

lead us to conclude that it should not make a

difference in respect to the application of Martinez.

Id.

appeal.

In its order addressing this issue, the circuit court denied

relief on the basis that this Court has expressly found that

Martinez and Trevino only apply in federal habeas proceedings

(PC-R2. Vol. III, 195). While Kormondy acknowledges this Court’s

precedent, he asks that this Court reconsider its previous

rulings. It is clear from Trevino that there is an equitable

right to effective collateral representation in Florida because

constitutional ineffectiveness claims cannot be adequately raised

on direct appeal. The United States Supreme Court explained:

We have said that courts of equity “must be governed by

rules and precedents no less than the courts of law.”

Lonchar v. Thomas, 517 U.S. 314, 323, 116 S.Ct. 1293,

134 L.Ed.2d 440 (1996) (internal quotation marks

omitted). But we have also made clear that often the

“exercise of a court’s equity powers ... must be made

on a case-by-case basis.” Baggett v. Bullitt, 377 U.S.

360, 375, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964). In

emphasizing the need for “flexibility,” for avoiding

“mechanical rules,” Holmberg v. Armbrecht, 327 U.S.

392, 396, 66 S.Ct. 582, 90 L.Ed. 743 (1946), we have

followed a tradition in which courts of equity have

sought to “relieve hardships which, from time to time,

Although the constitutional issue in both Trevino and

Martinez was an ineffective assistance of trial counsel, the

logic applies equally to claims of prosecutorial misconduct

raised under Brady v. Maryland and Giglio v. United States that

require evidentiary development in collateral proceedings. Here,

the inequitable effect of undersigned collateral counsel’s

ineffective assistance compounded the prosecution’s violation of

Brady v. Maryland and Giglio v. United States, as well as trial

counsel’s violation of Kormondy’s constitutional right to

effective representation under Strickland. See Trevino, 133 S.Ct.

at 1921.

arise from a hard and fast adherence” to more absolute

legal rules, which, if strictly applied, threaten the

“evils of archaic rigidity,” Hazel-Atlas Glass Co. v.

Hartford-Empire Co., 322 U.S. 238, 248, 64 S.Ct. 997,

88 L.Ed. 1250 (1944).

Holland v. Florida, 130 S.Ct. 2549, 2563 (2010) (emphasis added).

This Court has recognized that it is a court of equity. See

State v. Akins, 69 So. 3d 261, 268 (Fla. 2011). Akins explained

that equitable principles warrant overriding a procedural bar in

order to avoid manifest injustice:

The State contends that the law of the case doctrine

and collateral estoppel barred the Second District from

addressing this claim below. We disagree. Under

Florida law, appellate courts have “the power to

reconsider and correct erroneous rulings [made in

earlier appeals] in exceptional circumstances and where

reliance on the previous decision would result in

manifest injustice.” Muehlman v. State, 3 So. 3d 1149,

1165 (Fla. 2009)(alteration in original) (recognizing

this Court’s authority to revisit a prior ruling if

that ruling was erroneous)(quoting Parker v. State, 873

So. 2d 270, 278 (Fla. 2004)); see State v. J.P., 907

So. 2d 1101, 1121 (Fla. 2004)(same); Parker v. State,

873 So. 2d 270, 278(Fla. 2004)(same); see also Fla.

Dep’t of Transp. V. Juliano, 801 So. 2d 101, 106 (Fla.

2001)(“[A]n appellate court has the power to reconsider

and correct an erroneous ruling that has become the law

of the case where a prior ruling would result in a

‘manifest injustice.’” (quoting Strazulla v. Hendrick,

177 So. 2d 1, 3 (Fla. 1965).

Akins, 69 So. 3d 261, 268 (Fla. 2011).

In Strazulla v. Hendrick, 177 So. 2d 1, 3-4 (Fla. 1965), the

case relied upon by this Court in Akins, the Court discussed the

same equitable principles that the United States Supreme Court

outlined in Holland v. Florida:

In 1953 the decision in Beverly Beach Properties v.

Nelson, supra, 68 So.2d 604, was rendered. In that case

this court stated plainly that

‘We may change ‘the law of the case’ at any time

before we lose jurisdiction of a cause and will

never hesitate to do so if we become convinced, as

we are in this instance, that our original

pronouncement of the law was erroneous and such

ruling resulted in manifest injustice. In such a

situation a court of justice should never adopt a

pertinacious attitude.’

There can be no doubt that the Beverly Beach Properties

decision and the line of cases following the McGregor

decision, supra, are in conflict with the holding in

Family Loan Co. v. Smetal, supra, and the line of cases

cited above which are in accord with the decision in

McKinnon v. Johnson, supra. The Beverly Beach

Properties decision, as well as the McGregor and

similar decisions, are, however, consistent with our

decisions respecting the doctrine of res judicata and

stare decisis, see Wallace v. Luxmoore, 156 Fla. 725,

24 So.2d 302, and with what appears to be the trend in

other courts to recognize that the administration of

justice requires some flexibility in the rule. See

Johnson v. Cadillac Motor Car Co., 261 F. 878, 8 A.L.R.

1623; Union Light, H. & P. Company v. Blackwell’s

Adm’r. (Ky.), 291 S.W.2d 539, 87 A.L.R.2d 264; McGovern

v. Kraus, 200 Wis. 64, 227 N.W. 300, 305, 67 A.L.R.

1381; Mangold v. Bacon, 237 Mo. 496, 141 S.W. 650, 654;

People v. Terry, Cal.1964, 390 P.2d 381; cases

collected in the annotation in 87 A.L.R.2d, pp.

299-317.

In view of the apparent conflict, it is clear that the

Beverly Beach Properties decision must be held to have

impliedly, if not expressly, modified the earlier

holding in Family Loan Co. v. Smetal, supra, and

similar decisions; and, insofar as these earlier

decisions may be construed as holding that an appellate

court in this state is wholly without authority to

reconsider and reverse a previous ruling that is ‘the

law of the case’, we hereby expressly recede therefrom.

We think it should be made clear, however, that an

appellate court should reconsider a point of law

previously decided on a former appeal only as a matter

of grace, and not as a matter of right; and that an

exception to the general rule binding the parties to

‘the law of the case’ at the retrial and at all

subsequent proceedings should not be made except in

unusual circumstances and for the most cogent

reasons-and always, of course, only where ‘manifest

injustice’ will result from a strict and rigid

adherence to the rule. Beverly Beach Properties v.

Nelson, supra.

Strazulla v. Hendrick, 177 So.2d 3-4(emphasis added).

As a court of equity, this Court should recognize that

equitable principles (i.e. basic fairness) dictate that there

must be an equitable right to effective collateral representation

in an initial collateral review proceeding because those

constitutional rights cannot be properly and fully vindicated in

a direct appeal.

The United States Supreme Court recognized that equitable

principles were necessary to permit procedural bars to be

overcome. It is simply wrong to hold that Trevino does not

govern in Florida state courts. The concept of fairness and the

equitable principles discussed in Holland, Martinez and Trevino

apply in Florida state courts.

Under Trevino, this Court should

recognize that a showing of collateral counsel’s deficient

performance under Strickland, while not warranting collateral

relief all by itself, constitutes cause to overlook a procedural

bar where the capital collateral defendant was prejudiced by that

deficient performance.

The events of this case exhibited exactly the circumstances

contemplated – and deemed inequitable – by the Supreme Court in

Martinez: “if counsel’s errors in an initial-review collateral

proceeding do not establish cause to excuse the procedural

default[, ] no court will review the prisoner’s claims.”

Martinez, 132 S.Ct. 1309. This is a case in which “exceptional

circumstances” exist such that “reliance on the previous decision

would result in manifest injustice.” Muehlman v. State, 3 So. 3d

1149, 1165 (Fla. 2009). To rectify the manifest injustice that

Kormondy has experienced, this Court should invoke “[t]he

‘flexibility’ inherent in ‘equitable procedure’” noted in

Holland, 130 S. Ct. at 2563; and the merits of Kormondy’s claim

should be considered.

CONCLUSION

Based upon the record and his arguments, Kormondy

respectfully urges the Court to reverse the lower court, order a

resentencing, and/or impose a sentence of life imprisonment,

and/or remand for an evidentiary hearing.

Specifically, the Supreme Court found that this equitable

right to effective representation at the initial collateral

review proceeding meant ineffective representation by collateral

counsel in the initial collateral review proceeding constituted

cause to overcome a procedural bar arising from either principles

of res adjudicata or procedural default. In other words, a

procedural bar precluding consideration of an ineffectiveness

claim regarding the adequacy of trial counsel’s representation

may be defeated by cause where the procedural bar is due to an

attorney’s errors in the initial-review collateral proceeding.

Martinez, 132 S. Ct. 1309.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing has been

furnished by electronic transmission to opposing counsel on this

day of December 2014.

CERTIFICATE OF FONT

This brief is typed in Courier 12 point not proportionately

spaced.

/s/ Michael P. Reiter

MICHAEL P. REITER

Florida Bar No. 0320234

4 Mulligan Court

Ocala, FL 34472

Telephone (813) 391-5025

E-Mail:

[email protected]

COUNSEL FOR APPELLANT